1990 PLP 669 (PLC)

Date of hearing: 17th January, 1990. All these four appeals are directed against separate orders passed by the Sindh Labour Court No. I, Karachi, on 10‑9‑1989, whereby the grievance petitions of all the four respondents were allowed. As the appellant in all the application is same and the points of law also same, .I propose to dispose of all the four appeals by the single decision.

2. I have heard Mr. Gul. Muhammad Soomro, Representative for the appellant and Mr. Abdul Munim Khan, Advocate for respondents Rajuddin son of Amir Hussain and Muhammad Shareef son of Ahmed Din and Mr. Ch. Latif Saghar, Advocate for respondents, Muhammad Yaseen son of Aziz Muhammad and S. Zaheer Hussain son of Moula Bukhsh. I have also gone through the record and proceedings of the cases.

3. Admittedly the appellant had promoted 12 persons as Traffic Assistants on the recommendation of Departmental Promotion Committee ignoring the four respondents. Admittedly all the four respondents are senior in length of service to the 12 promotees. Admittedly, under the settlement arrived at between the C.B.A. and the appellant the promotion is to be made on seniority‑cum fitness basis. It is observed that the 12 promotees who had been promoted and whose promotion has caused grievance to the respondents, had not been made party to the proceedings which is ,normally fatal to the case of the petitioners before the Labour Court. It is, however, submitted by the learned Counsel of the respondents that they do not seek relief against the 12 promotees and even if they (respondents) are promoted, it will not affect the promotees. Both the learned counsel for respondents concede that even if the order of promotion passed by the learned Labour Court, is upheld by the Tribunal the respondents would get promotion without disturbing the present incumbents working as Traffic Assistant.

4. The only question that requires consideration is whether the Labour Court or the Tribunal can decide whether an employee is fit to be promoted or it is the sole jurisdiction and discretion of employer. In support of their contention the respondents have relied upon the case of Divisional Superintendent of Pakistan Railways, Multan v. Punjab Labour Appellate Tribunal and 3 others 1983 P L C

103. In that case the respondents had worked in the selection post of the Railway Reservation Clerk and under an award the employee who had worked on a selection post continuously for one year against a substantive post had to be treated as confirmed. Though the grievance petition of the workmen was dismissed by Labour Court, the learned Tribunal confirmed them in terms of the award as pointed above. Before the learned High Court of Punjab, in writ petition the Railway had taken the stand, that there was no post of Reservation Clerk against which the respondents could be confirmed. The learned Single Judge of Lahore High Court observed that failure in paper formality by ordering creation of post being no fault of aggrieved clerk, such plea could not be raised because such clerk was working as Reservation Clerk. The writ petition was, therefore, dismissed. The question of promotion was not involved in this case. The respondents have also relied upon the case of Muhammad Munir Butt v. Agricultural Development Bank of Pakistan, Islamabad 1985 P L C 213, wherein the learned Punjab Appellate Tribunal has observed that it was prerogative of employer to decide the fitness of the employee for promotion, but as in that case the employee of the bank was ignored for promotion on the grounds of adverse reports in A.C.Rs. but there was no proof that employee was informed of such reports to enable him to represent for expunction. The learned Appellate Tribunal, therefore, set aside the order of the learned Labour Court dismissing the grievance petition and directed the Bank to reconsider the case of employee. In the case of Punjab Road Transport Board v. Muhammad Akram 1985 P L C 318, under the settlement higher posts were to be filled only by promotion, but senior was ignored on the grounds of ill‑health, though the medical certificate declared him fit for duty. The learned Punjab Appellate Tribunal held that grievance petition was rightly accepted by Labour Court who directed the management to promote him from the date his juniors were promoted with all back benefits.

5. Mr. Gul Muhammad Soomro, Counsel for the appellant has also relied upon the certain case‑law. In the case of Divisional Superintendent of Pakistan Railways, Sukkur and 2 others v. Mushtaque Ahmad and 8 others 1987 P L C 142, this Tribunal has observed, that the seniority and. promotion were not secured rights for the Railway employee and; therefore, such rights could not be enforced through the Labour Court under section 25‑A. In the case of Azizur Rehman v. Karachi Transport Corporation 1987 P L C 154, it was held by this Tribunal that as the Promotion Committee in respect of promotion did not find the appellant qualified, therefore, the grievance petition under section 25‑A of I.R.O. in the matter of promotion did not lie. It was further held that merely temporary working as Traffic Assistant did not vest employee with a right to make claim for promotion. In the case of Superintending Engineer, IInd Circle Electricity, WAPDA, Lahore v. Shabbir Ahmed 1984 P L C 1081, the learned Punjab Appellate Tribunal has held that the promotion was .not a right as the promotion is to be ordered not only on account of seniority but fitness for promotion is also necessary. The question of fitness is to be decided by the employer.

6. Concensus of the judicial pronouncements appears to be that it is the prerogative of employer to decide the question of promotion on the basis of seniority‑cum‑fitness. But this discretion is also to be exercised judiciously and not indiscreetly. The evidence on record is not clear as to on what grounds the employees were not found fit for promotion. As pointed above under the settlement, the respondents had a secured right for promotion, if they were senior and found fit for promotion. It also appears from the evidence, that the case of the respondents has not been given due consideration by the Departmental Promotion Committee and it is not clear whether the adverse remarks if any were ever communicated to the respondents.

7. In view of the aforesaid discussions, the order of the Labour Court directing the promotion of the respondents is set aside. However, the appellants are directed to reconsider the question of promotion of the respondents on merits from the date the juniors arc promoted. Appellant is directed to decide the case within three months.

8. All the four appeals are disposed of in the above terms. M.Y.H./1623/Lb. S Case remanded.